Posts from December, 2007

White House Objects to FY2008 Intelligence Authorization Bill

Perhaps the clearest indication lately that intelligence oversight still matters is a new White House Statement of Administration Policy (pdf) expressing strong opposition to the FY2008 Intelligence Authorization bill.

“If this bill were to pass the House and the Senate and be presented to the President for signature, the President’s senior advisors would recommend that he veto the bill,” the Statement notes.

On issue after issue, from interrogation to congressional reporting, the White House indicates disapproval of the new legislation, which has already been accepted by a House-Senate conference and awaits a final vote in each house.

Among other things, “The Administration also objects to section 328, which attempts to use Congress’ power of the purse to circumvent the authority of the Executive Branch to control access to extraordinarily sensitive information.”

This provision, which represents something of a new milestone in intelligence oversight, would impose a “fence” on certain spending until the Administration briefs the intelligence committees on the Israeli strike on a Syrian facility. It was introduced by Rep. Pete Hoekstra (R-MI) and adopted on a bipartisan basis.

A Resolution on Internet Access to CRS Reports

A bipartisan resolution to provide online public access to Congressional Research Service reports was introduced in the Senate yesterday.

“The Sergeant-at-Arms of the Senate, in consultation with the Director of the Congressional Research Service, shall make available through a centralized electronic system, for purposes of access and retrieval by the public … all information described in paragraph (2) that is available through the Congressional Research Service website,” the Resolution states.

Exemptions from disclosure are included for copyrighted and personal information, and for reports that are prepared confidentially for an individual member or committee.

The resolution, S. Res. 401, was jointly introduced by Senators Joe Lieberman, John McCain, Susan Collins, Patrick Leahy, John Cornyn and Tom Harkin.

The Legislative Branch must “increase its transparency and expand its interactive relationship with the public,” said Sen. Lieberman (pdf) yesterday.

“In this spirit, Senators McCain, Collins and I are introducing today legislation to require the Congressional Research Service to make its extremely valuable reports public. No method currently exists for the public to access them quickly and easily. As a result, many businesses collect the reports and sell them to paying customers. Our bill would allow members and Committees to easily post all CRS reports on their websites to anyone with internet access,” Sen. Lieberman said.

This arguably overstates the case on several points — “extremely valuable,” “no method,” and “many businesses.” And similar legislative initiatives have proved fruitless in the past. But this one may fare better, particularly since it does not appear to require coordination with the House of Representatives.

A Reversal for CIA in JFK FOIA Lawsuit

A federal appeals court last week overturned (pdf) a lower court ruling that the CIA had won in a Freedom of Information Act lawsuit involving JFK assassination records, and ordered CIA to continue processing the request.

The case involves records sought by journalist Jefferson Morley that he believes will provide new insight into the assassination.

“This decision, if the CIA respects it, will shed new light on one of the murkiest areas of the Kennedy assassination story: the CIA intelligence collection operations that picked up on Lee Harvey Oswald in the weeks before JFK went to Dallas,” Mr. Morley said.

FOIA decisions against the CIA are relatively rare. The latest decision does not immediately imply any new release of records, but requires the CIA to perform a new search and to provide further justification for its opposition to disclosure.

See “CIA Loses Case at DC Circuit” in The FOIA Blog, December 7.

Mr. Morley recently presented his views of the JFK assassination in “The Man Who Didn’t Talk” in Playboy.

Vice President’s Office is Not an Agency, ISOO Told

The Office of the Vice President is not an “agency” for purposes of the executive order on classification and therefore its classification and declassification activity no longer need be reported to the Information Security Oversight Office, the Justice Department finally informed ISOO Director Bill Leonard in a newly disclosed letter (pdf).

In a January 9, 2007 letter to the Attorney General, Director Leonard had questioned the OVP’s refusal since 2003 to submit to normal oversight. He was following up on a complaint (pdf) filed with ISOO by the Federation of American Scientists, which was also forwarded to the Attorney General.

The OVP’s position is not consistent with a “plain text reading” of the executive order, Mr. Leonard wrote (pdf) to the Attorney General at that time.

Be that as it may, the President’s intention is that the Office of Vice President should not be considered an “agency” for purposes of oversight, Steven G. Bradbury of the Justice Department Office of Legal Counsel wrote to Mr. Leonard on July 20, 2007 on behalf of the Attorney General. He cited another letter ((pdf) to that effect from White House counsel Fred Fielding.

The Bradbury letter to ISOO was obtained by blogger Marcy Wheeler, who disclosed it today on her blog EmptyWheel.

The Bush Administration’s evident willingness to reinterpret — not revise — the executive order and to deviate from what is commonly understood as the order’s “plain text” meaning illustrates the unreliability of executive orders as a safeguard of public rights, Ms. Wheeler stressed.

The move gave new resonance to a statement presented on the Senate floor last week by Sen. Sheldon Whitehouse (D-RI) who described an Office of Legal Counsel opinion which he said concludes as follows:

“An Executive order cannot limit a President. There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it.”

What the President is claiming, Sen. Whitehouse said, is that “I don’t have to follow my own rules, and if I break them, I don’t have to tell you that I am breaking them.”

BRAC Process Said to be Skewed by Improper Withholding

Defense Department officials improperly withheld crucial data from the Base Realignment and Closure (BRAC) Commission that might have justified the continued operation of certain Department laboratories and facilities, according to a new insider account (pdf).

A detailed timeline supported by a hundred pages of internal documentation leads the author to urge a reversal of the decision to close Fort Monmouth, New Jersey, among other actions.

The anonymous author, known to Secrecy News, said he has no financial or other material interest in the matter. He wrote that “integrity in Government decision-making is fundamental and essential to democracy.”

See “Pentagon Officials Withheld BRAC Data to Protect Proposals That Failed Legal Requirement” (119 pages, 4 MB PDF file).

A House Armed Services Subcommittee will hold a hearing on December 12 “on implementation of the Base Realignment and Closure 2005 decisions.”

CRS on the Foreign Intelligence Surveillance Act

The Congressional Research Service has issued two new reports on the Foreign Intelligence Surveillance Act as Congress prepares to consider amendments to the Act (both pdf).

“The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues,” December 7, 2007.

“The Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee,” December 6, 2007.

Intelligence Oversight Flexes One New Muscle

The ability of Congress to provide an effective check on Bush Administration intelligence policy has been increasingly called into question by each succeeding departure from the norms of accepted intelligence conduct, including most recently the destruction of CIA interrogation videos.

Even the Intelligence Committee leadership has expressed a disconcerting degree of self-doubt and inadequacy.

“For seven years, I have witnessed first-hand how the Intelligence Committee has been continually frustrated in its efforts to understand and evaluate sensitive intelligence activities by an Administration that responds to legislative oversight requests with indifference, if not out-right disdain,” said Senate Intelligence Committee chair Sen. Jay Rockefeller (pdf) at a hearing last month.

“For years, the White House and the Intelligence Community have repeatedly withheld information and documents — even unclassified documents — from the Committee that we have asked for,” he said.

So it is all the more remarkable that the intelligence oversight committees have finally dusted off and used one of the tools they have always had to compel executive branch cooperation — the power of the purse.

Specifically, a provision of the new FY2008 intelligence authorization bill would prohibit expenditure of certain funds for an unidentified classified program unless and until every member of the oversight committees is briefed on intelligence about the September 6, 2007 Israeli strike on a Syrian facility.

See Section 328 (“Limitation on use of funds”) of the Conference Report on the FY 2008 Intelligence Authorization Act completed last week.

Although disputes over congressional access to information date back to the first months of the Bush Administration, a review of past legislation shows that the intelligence committees have not previously exercised their budget authorization power in this way to compel disclosure of information, or to penalize non-disclosure, under the current Administration.

In fact, a former staffer told Secrecy News he could not remember this approach ever having been used by the intelligence committees (though other committees have often made release of funds contingent on submission of required reports under their jurisdiction).

So why did they do it now?

The former staffer pointed to testimony last month by former Rep. Lee Hamilton at a Senate Intelligence Committee hearing in which he stressed the use of financial incentives to induce intelligence agencies to submit to oversight:

“Okay, they don’t share information. What do you do about it? You’ve only got one tool: ‘If you don’t give us this information, you’re not going to get the money.’ That’s it,” Mr. Hamilton told the Committee on November 13.

The scales seemed to fall from the members’ eyes.

“I think you’ve given us a game-changing scenario,” replied Sen. Kit Bond (R- MO) at the hearing.

The use of appropriations authority to elicit information from the executive branch actually dates back to the earliest days of the Republic, observed Louis Fisher in a 2001 Congressional Research Service report.

“Presidents may have to surrender documents they consider sensitive or confidential in order to obtain funds from Congress to implement programs important to the executive branch. This congressional leverage is evident in a number of early executive-legislative confrontations.”

See “Congressional Access to Executive Branch Information: Legislative Tools” (pdf), May 17, 2001.

Update: To give credit where it’s due, the amendment restricting the use of funds until the requested briefings have taken place was introduced by Rep. Pete Hoekstra (R-MI), the former chairman of the House Intelligence Committee. It was adopted in the House-Senate conference.

Selected CRS Reports

Noteworthy new reports from the Congressional Research Service include the following (all pdf).

“Open Source Intelligence (OSINT): Issues for Congress,” December 5, 2007.

“Medal of Honor Recipients: 1979-2007,” updated November 13, 2007.

“Homeland Security Department: FY2008 Appropriations,” updated August 20, 2007.

“Greece Update,” updated October 16, 2007.

“The Republic of the Philippines: Background and U.S. Relations,” updated August 10, 2007.

CIA Bungles Declassification of Official Histories

When the Central Intelligence Agency released several declassified histories of its clandestine services program this week, it seemed like a solid indication of progress towards opening up the historical record of U.S. intelligence.

But upon closer inspection of the newly released documents, the opposite appears to be closer to the truth. It turns out that CIA has engaged in pointless multiple reviews of the same document, and has even attempted to classify and to withhold information that had previously been declassified and disclosed.

Today, the Federation of American Scientists asked the Information Security Oversight Office (pdf) to investigate the matter.

The 1961 “Record of Paramilitary Action Against the Castro Government of Cuba” (pdf) that was posted on the CIA web site this week was first processed for declassification in 1997 in response to a request from Peter Kornbluh, the Cuba expert at the National Security Archive, and the lightly redacted document was posted on the Archive web site in 1998.

In 2007, the same document was again subjected to declassification review. It was re-scanned by CIA reviewers and this time the redactions were made by whiting out the text instead of blacking it out as had been done ten years ago. But appearances aside, a comparison of the two documents indicates that no new information was released since 1997.

In other words, despite the CIA’s expenditure of scarce declassification resources to process the document twice, no value was added by doing so.

Even more problematic is the Agency’s handling of the declassified history of “The Berlin Tunnel Operation, 1952-1956″ (pdf), because the CIA attempted to withhold portions of that report as classified even though they had previously been released.

The Berlin Tunnel history has been reviewed several times for declassification. The latest version that was released by the CIA this week was “approved for release” in July 2007. Another version of the same document was previously “approved for release” in February 2007.

Astonishingly, much of the text that was released in February is marked as classified in the July version!

So, for example, the codename of the Berlin Tunnel Operation — PBJOINTLY — was published in the February edition of the history (at page i), but censored in the July edition that was released this week.

More substantively, a fifteen page appendix (App. A) entitled “Discovery by the Soviets of PBJOINTLY” was published in full in February but was almost entirely redacted in July.

Likewise, a six page appendix (App. B) entitled “Recapitulation of the Intelligence Derived” was published in full in February but redacted in July. And there are many other examples of such attempted reclassifications scattered throughout.

A copy of the more complete February 2007 version is posted here.

And for comparison, the more recent but less revealing July 2007 version is here.

“For the CIA to represent the material that was newly redacted in July 2007 as classified when in fact it has been declassified and published by the CIA itself is, I believe, a violation of the executive order,” I wrote in a letter to the Information Security Oversight Office today. “It generates confusion and suggests poor quality control, if not something worse.”

“I hope that ISOO may be able to help clarify the source of CIA’s defective declassification practice in this instance and to identify an appropriate corrective.”

“We’ll look into it,” replied Bill Leonard, the ISOO Director.

Several CIA Clandestine Services Histories Declassified

The Central Intelligence Agency has recently declassified and released several additional volumes of its coveted Clandestine Services History series. These are official Agency histories prepared for internal use regarding significant episodes in the Agency’s cold war record. Scholarly access to such documents has been sporadic and subject to strict controls.

The following clandestine service history volumes were approved for release in July 2007 following a new declassification review and were recently disclosed (all pdf).

“The Secret War in Korea, June 1950 to June 1952,” March 1964.

“Record of Paramilitary Action Against the Castro Government of Cuba, 17 March 1960 – May 1961,” May 1961.

“The Evolution of Ground Paramilitary Activities at the Staff Level, October 1949-September 1955,” November 1968.

“The Berlin Tunnel Operation, 1952-1956,” 24 June 1968.

The declassified documents were made available on CIA’s useful Freedom of Information Act site at www.foia.cia.gov.